Sihotang v. Sessions

• Decision Date: 15 August 2018
• Docket Number: No. 17-2183,17-2183
• Citation: 900 F.3d 46
• Parties: Indra SIHOTANG, Petitioner, v. Jefferson B. SESSIONS, III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

900 F.3d 46

Indra SIHOTANG, Petitioner,

v.Jefferson B. SESSIONS, III, Attorney General, Respondent.

No. 17-2183

United States Court of Appeals, First Circuit.

August 15, 2018

Jesse H. Thompson, with whom Andrea C. Kramer, Boston, MA, Julie A. Frohlich, and Kramer Frohlich LLC were on brief, for petitioner.

Abigail E. Leach, Trial Attorney, Office of Immigration Litigation, U.S. Dept. of Justice, with whom Chad A. Readler, Acting Assistant Attorney General, Civil Division, Anthony C. Payne, Assistant Director, Office of Immigration Litigation, and Janette L. Allen, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

Before Thompson, Selya, and Kayatta, Circuit Judges.

SELYA, Circuit Judge.

Motions to reopen—especially untimely motions to reopen—are disfavored in immigration cases. Consequently, an alien who seeks to reopen removal proceedings out of time ordinarily faces a steep uphill climb. This does not mean, though, that the mountaintop is entirely beyond reach. The case at hand—in which the Board of Immigration Appeals (BIA) overlooked a significant factor relevant to the decisional calculus—illustrates the point. After careful consideration of a tangled record, we grant the petition for judicial review, vacate the BIA's denial of the motion to reopen, and remand for further proceedings consistent with this opinion.

The petitioner, Indra Sihotang, is an Indonesian national and an evangelical Christian. In his homeland, approximately eighty-seven percent of the population is Muslim.

The petitioner, then 36 years of age, entered the United States on a bogus crewmember's visa in 2003 and overstayed. On March 26, 2004, federal authorities instituted removal proceedings against him pursuant to 8 U.S.C. § 1227(a)(1)(A). After conceding removability, the petitioner cross-applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (another form of withholding of removal).

During his November 2006 removal hearing before an immigration judge (IJ), the petitioner testified that he had experienced persecution in Indonesia on account of his faith. He described three sets of incidents, which he attributed to his religious identity:

• In 1992, the petitioner and his brother were assaulted while riding on a motor bike in Jakarta. They sustained serious injuries and received medical attention at a nearby hospital. The petitioner ascribed this assault to the Christian cross emblazoned on the T-shirt he was wearing.

• In 2002, Muslim extremists committed a series of high-profile attacks on Indonesian churches.

• Later that year, a group of Muslim extremists, using a megaphone, succeeded in disbanding a religious prayer meeting hosted by the petitioner at his home in Jakarta.

Despite the petitioner's testimony and his documentary submissions, the IJ denied the petitioner's application for relief, but granted him a two-month voluntary departure window "for humanitarian reasons." The BIA dismissed the petitioner's appeal on May 14, 2008. The petitioner did not seek judicial review of that dismissal.

Notwithstanding the expiration of the voluntary departure period, federal authorities allowed the petitioner to remain in the United States under an order of supervision for almost ten years.¹ During that interval, the petitioner married an Indonesian Christian with ethnic Chinese heritage (an ethnicity strongly associated with Christianity in Indonesia). They have four American-born children, one of whom has Down syndrome

. The petitioner abided by the terms of his supervision, worked regularly, and was the family's sole source of income. In addition, he provided his disabled son with daily physical therapy.

The world turned upside-down for the petitioner and his family on September 7, 2017. At that time, the petitioner went to an ICE field office in New York for the purpose of renewing his supervision paperwork (as he had done on several prior occasions). This time, he was taken into custody by ICE officers.

On October 12, 2017—while still in custody—the petitioner moved to reopen his removal proceedings. See 8 C.F.R. § 1003.2(c). Because the petitioner's motion was not filed within 90 days of the final administrative decision in the initial removal proceeding, the BIA deemed the motion time-barred. See id. § 1003.2(c)(2). Seeking to avoid this temporal barrier, the petitioner averred that country conditions in Indonesia had changed materially since the time of his merits hearing. See id. § 1003.2(c)(3)(ii). In support, he submitted new evidence in the form of published news articles and country conditions reports. He also submitted a detailed 66-page affidavit signed by Dr. Jeffrey A. Winters, an academician specializing in Indonesian political economy, labor, and human rights.

The BIA gave the petitioner short shrift. In a terse one-and-a-half page opinion, the BIA framed the petitioner's claim as one of "changed country conditions affecting Indonesian Christians, particularly in the increasing influence of extreme Islamic groups." It proceeded to deny the petitioner's motion to reopen, concluding that conditions in Indonesia had not "materially changed since [the 2006 merits] hearing." In the BIA's estimation, the petitioner had managed to show only "a continuation of previously existing conditions." Although the BIA concluded that "Christians in Indonesia may face societal abuses or discrimination, and ... there have been incidents of harm against Christians and their places of worship," it nonetheless noted that, "millions of Christians continue to live in Indonesia without experiencing harm." This timely petition for judicial review ensued. We issued a temporary stay of removal on December 1, 2017, and supplanted that temporary stay with a more durable stay order on February 14, 2018.

Our standard of review is familiar. Motions to reopen removal proceedings are disfavored because they impinge upon "the compelling public interests in finality and the expeditious processing of proceedings." Bbale v. Lynch, 840 F.3d 63, 66 (1st Cir. 2016) (quoting Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir. 2005) ). We afford the BIA "wide latitude in deciding whether to grant or deny such a motion," id., and judicial review is for abuse of discretion, see Sánchez-Romero v. Sessions, 865 F.3d 43, 46 (1st Cir. 2017). To cross this threshold, the petitioner must show that the BIA either "committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational manner." Bbale, 840 F.3d at 66.

Whether an abuse of discretion occurs necessarily hinges on the facts and circumstances of each particular case. To guide this inquiry, we have explained that the BIA may abuse its discretion "by neglecting to consider a significant factor that appropriately bears on the discretionary decision, by attaching weight to a factor that does not appropriately bear on the decision, or by assaying all the proper factors and no improper ones, but nonetheless making a clear judgmental error in weighing them." Murillo-Robles v. Lynch, 839 F.3d 88, 91 (1st Cir. 2016) (quoting Henry v. INS, 74 F.3d 1, 4 (1st Cir. 1996) ).

With the standard of review in place, we return to the case at hand. To succeed on his motion to reopen, the petitioner had to satisfy two substantive requirements. First, he had to "introduce new, material evidence that was not available at the original merits hearing." Perez v. Holder, 740 F.3d 57, 62 (1st Cir. 2014). Second, he had to "make out ‘a prima facie case of eligibility for the relief sought.’ " Id. (quoting Jutus v. Holder, 723 F.3d 105, 110 (1st Cir. 2013) ).

In determining whether the petitioner satisfied the first requirement, the BIA had to "compare[ ] the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing." Sánchez-Romero, 865 F.3d at 46 (quoting Xin Qiang Liu v. Lynch, 802 F.3d 69, 76 (1st Cir. 2015) ). To prevail, the petitioner had to demonstrate that conditions in Indonesia had "intensified or deteriorated" in some material way between November 8, 2006 (the date of the petitioner's merits hearing) and October 12, 2017 (the date on which the petitioner filed his motion to reopen). Id. The BIA concluded that the petitioner failed to satisfy this requirement: he had shown nothing more than the persistence of negative conditions for Indonesian Christians. That showing, the BIA opined, was insufficient to carry the petitioner's burden of proving that his new evidence reflected a material change in country conditions.² See, e.g., Sugiarto v. Holder, 761 F.3d 102, 103-04 (1st Cir. 2014) ; Simarmata v. Holder, 752 F.3d 79, 81 (1st Cir. 2014) ; Marsadu v. Holder, 748 F.3d 55, 59 (1st Cir. 2014) ; Fen Tjong Lie v. Holder, 729 F.3d 28, 30-31 (1st Cir. 2013).

We find the BIA's analysis superficial. For aught that appears, the BIA seems to have evaluated the petitioner's motion to reopen as if he were a prototypical Indonesian Christian. The record, however, belies this assumption. In his motion to reopen, the petitioner asserted—and the government did not dispute—that the petitioner subscribes to a more particularized subset of the Christian faith: he is an evangelical Christian, for whom public proselytizing is a religious obligation. Yet, in terms of the prospect of persecution arising out of changed country conditions, the BIA wholly failed to evaluate whether and to what extent there is a meaningful distinction between Christians who practice their faith in private and evangelical Christians (such as the petitioner), for whom public proselytizing is a central tenet.

So, too, the BIA neglected to consider whether country conditions had materially changed with respect to public and private reactions (including vigilante violence) toward evangelical Christians. Finally, the BIA neglected to consider whether attitudes in Indonesia had materially changed with respect to persons...